Canadian HR Reporter

CANADIAN HR REPORTER April 17, 2017 10 NEWS LeNoury Law Proactive Advice to Management Employment Lawyer of The Year James LeNoury B.A. (Hons) M.A. LL.B 416-926-1107 • Toll Free 1-877-926-1107 • lenourylaw.com CAREpath is the only Canadian Health Care navigation program of its kind offered in Canada. We have extensive experience in navigating Canadians through the health care system. Cancer Assistance Seniors' Care Assistance HealthCare Assist Your Wellness Partner "If somebody has sore feet and can't wear certain shoes, that would fit into the idea of disability." irdly, an employer can't re- quire women to wear high heels if male employees and managers are not required to do so as well, said Duff. "at would constitute discrimination." e best alternative is to com- municate to workers that if they request to wear flats and are de- nied, they may pursue a human rights complaint, he said. And for employees who fear some kind of reprisal from the employer, there's the option of making a health and safety complaint. "Servers who are forced to wear heels against their will could sub- mit a health and safety complaint anonymously and have investiga- tions triggered the same way." Dress codes that require wom- en to wear high heels would be prima facie discriminatory under human rights legislation, so there's probably no need for stand-alone legislation in relation to high heels or gender or sexualized dress codes, according to Renu Mand- hane, chief commissioner of the Ontario Human Rights Commis- sion (OHRC) in Toronto. "at said, it's always good to make the requirements as clear as possible, and if that requires legis- lation, that's great," she said. "Certainly, (B.C. has) started a public debate around these issues, and public awareness around these issues, that I think is in many ways more important than the legal obligations. It's that people understand these really pervasive and almost normalized forms of discrimination that we see in our society, even in 2017." There are some people who still think this isn't a big deal, and if a woman doesn't want to wear a gendered or sexualized dress code, then she should just work somewhere else, said Mandhane. "at recognizes in many ways these employees don't have a lot of power — this is generally low- skilled, low-wage work — and so often (employers) can find some- body else who is willing to wear the prescribed dress code." is issue involves people who are in a very vulnerable position, with their employment poten- tially being terminated, said An- drew Monkhouse, senior lawyer and founder of Monkhouse Law in Toronto. "From an academic perspec- tive, to be clear, a prohibition on discriminatory dress codes already exists under the Ontario Human Rights Code, and the tribunal has enforced cases for discriminatory clothing, so it ex- ists. But there isn't a great deal of knowledge about it, so if some- thing was to come out that would increase knowledge, that would be useful." It would be more useful if dress codes were included in employ- ment standards so a worker could go to the Ministry of Labour with a complaint, he said. And when it comes to safety, people are actually getting notes from their doctors saying they shouldn't wear high heels for a month or two. "You end up with... this bizarre subset where people are getting medical notes to get out of work- place policies that are discrimina- tory," he said. A third aspect concerns anti- harassment and bullying, accord- ing to Monkhouse. "(ese dress codes) often pro- mote a sexualized work environ- ment… which obviously can lead to higher instances of workplace sexual harassment and workplace bullying because there's the di- chotomy or difference between the different groups, and people treat it in a sexualized way because they're forced to dress in a certain way. There's a certain control people feel over their employees, which I've found too often increas- es the chances of harassment, up to and including sexual assault." Research has shown gendered dress codes heighten the risk for sexual harassment in the work- place, said Mandhane at the OHRC, which released a policy statement on the issue in 2016. "What might seem like not that consequential are really impor- tant risk factors for bigger prob- lems... So it's also (about) expand- ing our conversation about this so people understand this isn't just about clothing, it's about the kind of work environment that you're creating for your employees." Choice matters But there are many people who would like to wear heels, so why should the state outline the way people dress? said Duff. "What we need to do is allow people to have choice in the shoes that they deem most appropriate for the work that they're doing," he said. "I don't think the state has any place in dictating what people wear, whether it be shoes, whether it be skirts, whether it be a hijab, whether it be a burka." While a requirement for high heels would be considered sexu- alized dress code, the issue can get into a murky area when it comes to choice, according to James Rilett, vice-president for Ontario at Restaurants Canada in Toronto. "Many times, people like to dress up for their shifts, so it's a balance. You can't say, 'You can't wear high heels' but you also don't want to say, 'You have to wear high heels' or anything else for that matter," he said. "I wouldn't want to say wheth- er it's unsafe or not because that would be up to WSIB (Workplace Safety and Insurance Board) offi- cials to make that determination but overall… do you want to re- strict people from wearing what they want? In most cases, people that wear high heels do it because they like to wear high heels, and do you want to tell them they can't?" In many ways, the fundamental principle is that you need to have a range of options that allow dif- ferent people, however they iden- tify, to feel comfortable and safe at work, said Mandhane. "And that's a very simple way of saying you need to have a dress code that's inclusive. at doesn't mean that companies can't have a certain look or feel or style that they want to reflect their brand, but it does mean that they need to have flexible options." e OHRC is not trying to say there should be a ban on high heels, but that dress codes should provide a range of gender-neutral options, said Kathryn Meehan, labour lawyer at Hicks Morley in Waterloo, Ont. "ey've provided a sample, a gender-neutral dress code policy, and it indicates that positions should include a pants option. So taking an options approach on the part of employers can reduce the likelihood of a complaint on the basis of sex discrimination or it could be gender identity, gender expression — those are protected grounds under the code as well." e commission is focusing on choice and providing options, she said. Choice is obviously good, said Monkhouse, "but it should be a genuine choice, not just a fake choice — it shouldn't be the rule of the masses." One challenge in the service in- dustry is the lack of written poli- cies, which makes them difficult to enforce, he said. And there's not much of an HR group at the smaller restaurants. "It's usually left up to bar man- agers, assistant managers, who don't have extensive human re- sources experience — they're more focused on the bottom line potentially, or what they see as being an image for the bar, which leads them to ignore po- tential violations because they have a different focus that isn't employee-focused." Ontario checks in with restaurants But advances are being made, ac- cording to Ontario's human rights commission, which released a re- port in March outlining the com- mitments made by many restau- rant chains to eliminate discrimi- natory dress codes. All of the restaurants contacted by the commission are either de- veloping new policies or amend- ing existing ones, according to Not on the Menu: Inquiry Report on Sexual and Gender-based Dress Codes in Ontario's Restaurants. In general, companies ex- pressed support for addressing dress codes, sexual harassment and other human rights concerns in their workplaces. But the OHRC is encouraging companies to take the next step by putting these policies into prac- tice on the ground and making sure employees have the opportu- nity to bring forward complaints if they think their rights have been violated. The commission also devel- oped a set of frequently asked questions or FAQs, said Mand- hane, because "some restaurants said, 'Of course, we want to com- ply with our legal obligations, but we don't know exactly where the line is to be drawn between hav- ing a permissible dress code ver- sus one that may be discrimina- tory on the basis of sex or gender identity or even creed.'" It's an issue that's not just lim- ited to the restaurant industry, said Rilett. "All of society is looking at things that they've done for years and saying, 'Should we do things differently?' or 'Is this right?' or 'Do we need to look at the fairness of things we've never questioned before?' So it's part of a growing society and we know that not ev- erything that's always been done in the industry has always been positive," he said. "And I think, if you look around in the industry, it's nowhere near where it was even five years ago, so changes are happening — may- be not as fast as they should, but they are coming." DRESS CODE < pg. 1 Range of options should be offered "We need to allow people to have choice in the shoes they deem most appropriate."

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